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Part 3 Page 1
Page 1
ADDRESS TO THE COURT
including
SUBMISSIONS
By the Defendant, Mr G. H. Schorel-Hlavka.For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630
ADDRESS TO THE COURT, Part 3
County Court of Victoria, Case numbers T01567737 & Q10897630
With an OBJECTION TO LEGAL JURISDICTION, who has the carriage of theproceedings?&No legal jurisdiction can be invoked with Constitutional matter before the Court.&NO CASE TO ANSWER&STANDARD OF PROOF&DOUBLE JEOPARDY RULEAVERTMENT
Part XXIII
Miscellaneous
Section 387
384 Commonwealth Electoral Act 1918
(i) section 326 or 327 of this Act or section 28 of the
Crimes Act 191
4; or
388 Averments deemed to be proved
In any prosecution in a court of summary jurisdiction in respect of a contravention of the provisions of this Act or the regulationsrelating to compulsory enrolment or compulsory voting, institutedby an officer or by any person acting under the direction of anofficer, the averments of the prosecutor contained in theinformation or complaint shall be deemed to be proved in theabsence of evidence to the contrary.
There is something illogic about this section in that it demands that unless the Defendant presentevidence to prove contrary to the averment rule that there is evidence disproving the fact allegedby the Commonwealth director of Public Prosecution there is no requirement for the Director of Public Prosecution to prove anything.Now, let take this in the correct prospective by example;A trial commence and the Prosecutor having charged the Defendant with failure to vote thencommence his case and using the averment rule does not provide any evidence to prove thecharge. The Defendant then pleads
NO CASE TO ANSWER
, and the judicial officer rejects thison the basis that the averment rule applies. The Defendant then commences to open his case andpresent evidence contrary to the charge. The Defendant has the conduct of civil standards of proof and as such merely has to state that he/she attended to the polling station. And as such thedefendant has completed his contrary evidence. While the Prosecutor can now cross examine theDefendant, something the Defendant was denied to do upon the Prosecutor as to elicit anyevidence because the Prosecutor relies upon the averment rule, now the Prosecutor ask all kinds of questions to try to trap one way or another the Defendant to give evidence that he had perhaps notfilled in the ballot paper or otherwise did not accept them. The Prosecutor has clearly no legalposition to now call witnesses, such as those who were at the polling station as to what actuallyoccurred at the polling station, and so is seeking to use the Defendant to try to prove his case.However, because of the
NO CASE TO ANSWER
claim the Defendant made before openinghis own case, the judicial officer must now find that the failure of the prosecutor to presentevidence and to rely now upon the Defendant to give some kind of evidence that he may notactually have filled in any ballot paper is irrelevant as the claim of
NO CASE TO ANSWER
relies upon what evidence was before the Court
PRIOR TO
what evidence was before the Courtwhen this claim was made and must disregard any evidence that was given afterwards. A Court of
Part 3 Page 2
Page 2
ADDRESS TO THE COURT
including
SUBMISSIONS
By the Defendant, Mr G. H. Schorel-Hlavka.For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630
Appeal, if the matter is appealed, re-assess the claim of
NO CASE TO ANSWER
, upon the basisif the Prosecutor in fact had proved “
BEYOND REASONABLE DOUBT
” the charge and bythis must disregard any evidence that was given after the claim of
NO CASE TO ANSWER
wasmade. The Prosecutor having the “
CRIMINAL STANDARD OF PROOF
” there by had theonus to disprove each and every excuse the Defendant may proffer on the “
CIVIL STANDARDOF PROOF
” and therefore where the Prosecutor takes the gamble of relying upon the avermentrule that he takes a
CALCULATED RISK
that it might be fatal to his case. The judicial officer,who becomes aware , once the Defendant opened his case, that the Defendant in fact on
CIVILSTANDARDS OF PROOF
had a excuse, then is duty bound to discontinue the trial and make aruling that the
NO CASE TO ANSWER
claim by hindsight now is validated. This, as theProsecutor already had closed his case. To allow for the prosecutor to use cross-examination as away to try to re-open his case and to try to thereby get away from the averment rule and now seek to rely upon evidence elicited from the Defendant would a be gross abuse of the legal processesand would defeat the entire purpose of what the averment rule is about and interfere with the
DUEPROCESSES OF LAW
.It, so to say, would giver the Prosecutor another bite on the cherry to re-commence his case,having refused already to present relevant evidence. It also robs the Defendant of a
FAIR
and
PROPER
trial as the Defendant is denied to elicit of any witnesses for the Prosecution what hemay wish to present as simply by the averment rule application the Prosecutor can concealevidence from the Court that might be critical to the Defendants case.If for example the Defendant attended to the poling station and notified staff that he had religiousobjections to vote, which is provided for within Section 245 of the
Commonwealth Electoral Act1918
for an excuse not to vote, then regardless if the staff member of the Australian electoralCommission then by error or otherwise did not mark of the name of the Defendant is not an issueas within the legislation no charge can be upheld. Therefore, it is not relevant if the Defendant inthis example did not receive ballot papers, if his/her name was not marked of rather what isrelevant if at the time the Defendant by what occurred at the polling station was excused nothaving to vote. the staff member having not issued any ballot papers may in his/her mind correctlynot mark off the name of the Defendant as after all he/she did not fill in any ballot paper.When then the Prosecutor, having relied upon the averment rule failed to present witnesses thatcould, so to say, shed a light upon matters then this must be deemed
FATAL
to the charges andno charges could be legitimately upheld.Therefore, any evidence of by the Defendant during cross examination, if he gave such evidence.,that he did not receive any ballot papers, after attending to the polling station is not of anystandard of criminal proof by the Prosecutor that the Defendant therefore is guilty of failing tovote.In the proceedings before the Magistrates Court of Victoria at Heidelberg on 16 and 17 November2005 the Prosecutor at no time did cross examine the Defendant in that case, when advised thestaff of the Australian Electoral Commission did not issue any ballot papers, if this was because of having been made or being aware of any religious objection. The Prosecutor neither crossexamined if the Defendant had not been issued with ballot papers because of having declaredperhaps that he had already submitted a postal voting or was to do so that day. And I raised thiswith the magistrate that the Prosecutor had failed to address this!As such, what we had was a conviction where even if all issues regarding validity of citizenship,writs, proclamation, the appointment of Governor-Generals, etc were all overcome somehow bythe Prosecutor, something I view is beyond his capacity to get around, then in the end his ownusage of the averment rule is
FATAL
to his case as he could not now in cross examination callwitness , such as staff members of the Australian Electoral Commission to give evidence thateither they denied any religious objection having been made or otherwise any postal voting or prevoting was recorded.For example, in regard of the 2004 purported federal election, standing as a candidate, I wasknown to refuse to indicate a preference vote as I opposed the murderous unconstitutionalinvasion into the sovereign nations Afghanistan and Iraq and did not wish to be seen to support
Part 3 Page 3
Page 3
ADDRESS TO THE COURT
including
SUBMISSIONS
By the Defendant, Mr G. H. Schorel-Hlavka.For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630
this by giving preference vote indications which may be seen that somehow I supported thishumanitarian disaster and warmongering. Hence, it was therefore critical to the Prosecutors case if perhaps the staff member sitting at the table when my wife and I attended at the polling stationmay have been aware or have been made aware that I opposed any kind of involvement as to themurderous invasions and as such was not issued any ballot papers on that basis.I was well aware during the proceedings that it didn’t matter for me to give whatever evidence asultimately having made a
NO CASE TO ANSWER
the magistrate was bound by this toreconsider then if in light of the subsequent evidence his earlier ruling to dismiss my submissionof
NO CASE TO ANSWER
was found to be proven where I presented a reasonable excuse that Ihad attended to the polling station and as such it was not for the Court to try to score someconviction where the Prosecutor himself had elected not to call witnesses who could have clarifiedwhat occurred that day.Again, it was not for the magistrate to assume what may have occurred that day where theProsecutor himself refused to call witnesses whom could have elaborated on what had occurred onthat day! The Defendant was denied the option to cross witnesses in that regard as there werenone who could have shed light on this and as such the Prosecutor taking the gamble to preventthe defendant to question any staff of the Australian Electoral Commission by this had overplayedhis hand, so to say.
Hansard 30-3-1897 Constitution Convention DebatesMr. DEAKIN:
It appears to me that the representatives of the less populous States decline to distinguishsufficiently between the money powers and the general powers to be conferred by aConstitution. Now the distinction is no mere fantasy. It should be recognised in the forefrontof the Constitution. In the exercise of both powers there are instances in which it is possiblethat State interests may be put in jeopardy. State rights cannot be put in. such jeopardy;
theyare enshrined and preserved under the Constitution and protected by the courts to beestablished under that Constitution.
It must be clear that the Framers of the
Constitution
themselves relied upon certain principleshaving been embedded in the
Constitution
, and unless one is a “
constitutionalist
” as I am by self education, no one really should attempt to use constitutional provisions an limitations or anylegislation within that unless it has been checked of its constitutional correctness.
"A right is not what someone gives you;it's what no one can take from you."
HYPERLINK "http://quotes.liberty-tree.ca/quotes_by/ramsey+clark"Ramsey ClarkU. S. Attorney General New York Times, 2 October 1977
The right to vote exist and cannot be made subject to curtailments. Only if a person exercise aright to vote can appropriate legal provisions regarding the exercise of such right be invoked, if they are constitutionally valid, that is.For example, a person whom obtains a divers licence and is entitled to drive has the right toexercise this but cannot be made obligated to do so. It is only when exercising this right to drive amotor vehicle that then his duties to conform with road rules apply in that regard.
Hansard
24-3-1897
Constitution Convention Debates
;
Sir GEORGE TURNER:
I would go the length of saying that everyone who has the right in the various colonies,
if they desire to exercise their franchise
,should have the opportunity of doing so.
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